Challenge Not Timely: Panel Upholds Child Support Floor of $15,000 per Month

Oct. 23, 2013 – A Wisconsin millionaire whose income dropped significantly in 2011 must still pay at least $15,000 in monthly child support, a state appeals court has ruled.

Specifically, in Eisenga v. Eisenga, 2013AP91 (Oct. 3, 2013), a three-judge panel for the District IV Court of Appeals has ruled that Michael Eisenga forfeited his right to challenge, on public policy grounds, a court-imposed child support “floor.”

“Michael forfeited his right to challenge the child support floor provision on public policy grounds because he neither timely objected to it before the arbitrator nor argued against it before the circuit court,” wrote Judge JoAnne Kloppenburg for the panel.

Michael and Clare Eisenga were married for almost six years. In 2010, a circuit court sent their pending divorce to arbitration. An arbitrator upheld a prenuptial agreement: Clare was not entitled to any of Michael’s separate assets, valued at $30 million.

In addition, Michael was not required to pay spousal maintenance. But the arbitrator ordered Michael to pay Clare $18,000 per month to support the couple’s three children. That amount was based on Michael’s 2010 gross income of $1.19 million.

Although that child support amount could be adjusted with court approval, the child support “floor” could never fall below $15,000 per month, regardless of income. The arbitrator had noted Michael’s substantial separate estate in setting the floor amount.

In 2012, Michael filed a motion to strike the child support “floor” established by the arbitrator and accepted by the circuit court in Columbia County. Michael’s counsel argued that this provision violates public policy and cannot be enforced.

Michael wanted child support reduced to $4,109 per month, noting that his 2011 gross income dipped to $231,519 – much less than the $1.19 million he made in 2010. The circuit court upheld the floor and ordered Michael to pay $15,000 per month.

The appeals court upheld that decision, noting that Michael should have challenged the “floor” provision much sooner.

“If Michael believed that the child support floor provision violated public policy, his recourse was to move to vacate the arbitrator’s award under Wis. Stat. § 788.10,” Judge Kloppenburg wrote.

The panel noted that Michael’s challenge was required within three months of the arbitration award, and he did not timely appeal the judgment incorporating the award.

“Because we conclude that Michael forfeited his right to challenge the child support floor provision on public policy grounds, we do not decide whether, as Michael argues, the child support floor provision violates public policy, is inconsistent with the requirements that parents pay a fair amount to support the children’s needs, or results in hidden maintenance to Clare,” Judge Kloppenburg noted.